Roberts v. Cuthpert, S23A0631, 2023 WL 6065530 (Ga. Sept. 19, 2023)
Here, OCGA § 16-11-129 (j) expressly authorizes a cause of action against a public official, i.e., the probate judge, based on the denial of an application for a weapons carry license. In order for OCGA § 16-11-129 (j) to have any meaning at all, it can only be interpreted as creating a waiver of sovereign immunity. See City of College Park v. Clayton County, 306 Ga. 301, 314 (3), 830 S.E.2d 179 (2019) (concluding that a statute which “expressly authorize[d] claimants to seek relief against a public official … amount[ed] to a specific waiver of sovereign immunity when public officials are sued in their official capacities”). Thus, OCGA § 16-11-129 (j) is an implicit waiver of sovereign immunity in the limited circumstances provided therein, that is, when an “applicant is the prevailing party” on an official-capacity claim, like here, the applicant “shall be entitled to recover his or her costs in such action, including reasonable attorney’s fees.” OCGA § 16-11-129 (j). Accordingly, we affirm the superior court’s ruling that sovereign immunity is waived for the claims before us.
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Here, as shown in Division 1, the record establishes that the probate judge asserted the defense of judicial immunity only for the individual-capacity claims and did not assert the defense of judicial immunity for the costs-and-fees claim asserted against him in his official capacity at any time prior to the superior court’s denial of Roberts’s motion for costs. Thus, the probate judge waived whatever defense of judicial immunity might have been available for the costs-and-fees claim asserted against him in his official capacity.11 See Spann, 312 Ga. at 851 (2), 866 S.E.2d 371. Accordingly, the superior court erred in sua sponte ruling that the defense of judicial immunity barred Roberts’s costs-and-fees claim against the probate judge in his official capacity, and this ruling by the superior court is reversed.
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Based on the above, granting or denying an application for a weapons carry license does not involve the type of act normally performed only by a judge, and we conclude that such a grant or denial does not involve the exercise of judicial power. See Sons of Confederate Veterans, 315 Ga. at 47-48 (2), 880 S.E.2d 168 (“resolving private-rights disputes has been historically recognized as the core of judicial power”). Here, the superior court found that “plac[ing] a probate judge in a position to defend [himself] from civil liability every time [he denies] a weapons permit … impedes on a probate judge’s independence.” This sentiment, of course, is one of the linchpins of the doctrine of judicial immunity. See Forrester, 484 U.S. at 226-227 (III), 108 S.Ct. 538 (“If judges were personally liable for erroneous decisions, the resulting avalanche of suits … would provide powerful incentives for judges to avoid rendering decisions likely to provoke such suits. The resulting timidity … would manifestly detract from independent and impartial adjudication.”). But this reasoning has no place in interpreting the Separation of Powers Provision when, like here, a judge is performing only a nonjudicial function, there has been no infringement on or usurpation of a judicial function, and there has been no exercise of judicial power.15 We therefore hold that the Separation of Powers Provision is not implicated by a statute imposing liability for wrongly denying an application for a weapons carry license.
